When Does Attorney-Client Privilege Not Apply?

Communication between a client and their personal injury lawyer is typically protected under what is known as attorney-client privilege. However, this privilege is not absolute, so there are exceptions when attorney-client privilege does not apply.

The Crime-Fraud Exception

The intent of a personal injury client’s communication will determine whether attorney-client privilege applies. When a client’s intention is to cover up or commit a crime or fraud, the crime-fraud exception will come into play. The client must have:

• Been in the process of committing a crime or fraud; or,
• Communicated with the intent to further the crime or fraud or to cover it up.

The courts will often agree to the crime-fraud exception under these circumstances, even if the attorney did not participate in or have knowledge of the crime or fraud taking place. An attorney can be subpoenaed by the prosecution to disclose these communications or may be ethically required to notify the authorities.

In most states, attorneys are allowed or must divulge client information that can prevent serious injury or death. If an attorney fails to report these situations, they risk disciplinary sanctions and even criminal charges. However, past crimes and fraud may be safe to share with your personal injury lawyer, especially if they are public knowledge. If you are unsure or concerned about a topic remaining confidential, ask your lawyer for clarification on the scope of attorney-client privilege.

Information That Is Not Protected by Attorney-Client Privilege

The following types of information fall under the crime-fraud exception, and attorney-client privilege will not apply:

Critical Evidence

A personal injury attorney may have to turn over any critical pieces of evidence.

Perjury

If an attorney knows a client is going to or has lied in their testimony, they may be subject to discipline and possibly disbarment. Attorneys have a duty to the court not to present evidence they know to be false, fraudulent, or perjured. Additionally, if the opposing counsel finds out a personal injury victim has “perjured” themselves, their credibility will be ruined, and they may be held in contempt of court.

Threats

When a personal injury client threatens harm to someone else, for example, the party responsible for causing their injury, a witness, or a judge, then their attorney will likely have to report the threat.

How Attorney-Client Privilege Can be Waived Without Knowing It

There are several ways that clients can waive attorney-client privilege:

• Posting confidential information on social media.
• Allowing another person to be present at a meeting with their personal injury lawyer.
• Using a work email address to communicate with their attorney.

Even when you did not intend to waive attorney-client privilege, the court will often view your actions as you no longer wanting the information to remain confidential. Waivers can be intentional or accidental. Generally, speaking of privileged communication in a non-confidential context can prevent protection. However, whether the exception or waiver applies will typically depend on the facts of each case, evidence rules, statutes, and the court’s decision.